On June
6, 2017, the Criminal District Court of Dallas County, Texas,
set the execution of William Earl Rayford for January 30,
2018. On August 9, 2017, Rayford filed his motion for funds
for expert services. Motion, doc. 100. The certificate of
conference indicated that it is opposed. Mot. at 12.
Respondent has filed her response in opposition to the
motion. Response, doc. 101. Because Rayford has shown a
reasonable need for the funding, the motion is granted.

I.

REQUEST

Rayford
seeks this Court's approval for funds to hire an expert,
Dr. Richard L. Fulbright, to perform a neuropsychological
evaluation on Mr. Rayford in connection with subsequent state
clemency proceedings under 18 U.S.C. § 3599(f).
See Mot. 10-11 (citing Brown v. Stephens,762 F.3d 454, 459-61 (5th Cir. 2014)). Rayford argues that
the requested services are reasonably necessary to provide
the Governor and Board of Pardons and Paroles the information
they need in order to determine whether to exercise their
discretion to extend grace to the petitioner in order to
prevent a miscarriage of justice. Specifically, Rayford
asserts that the proposed funding and expert services would
provide “material information beyond that already
adduced.” Mot. 10. Rayford acknowledges that a mental
health evaluation was previously conducted by forensic
psychologist Dr. Gilda Kessner prior to his capital murder
trial, but questions the circumstances and thoroughness of
that examination.

Respondent
argues that the requested funding is not reasonably necessary
because evidence of Rayford's neuropsychological
functioning would be cumulative to mental-health evidence
already presented during Rayford's trial and during his
postconviction proceedings. Resp. 11-18. Further, Respondent
argues that Rayford cannot demonstrate that funding is
reasonably necessary in light of the brutal nature of his two
murders. Resp. 18-19.

II.

LEGAL
STANDARD

Appointed
counsel has a duty to represent Rayford through “all
available post-conviction process, together with applications
for stays of execution and other appropriate motions and
procedures, and shall also represent the defendant in such
competency proceedings and proceedings for executive or other
clemency as may be available to” Rayford. 18 U.S.C.
§ 3599(e); Harbison v. Bell,556 U.S. 180, 194
(2009) (holding that § 3599 authorizes federally
appointed counsel to represent their clients in state
clemency proceedings and entitles them to compensation for
that representation). This statute further provides:

Upon a finding that investigative, expert, or other services
are reasonably necessary for the representation of the
defendant, whether in connection with issues relating to
guilt or the sentence, the court may authorize the
defendant's attorneys to obtain such services on behalf
of the defendant and, if so authorized, shall order the
payment of fees and expenses therefor under subsection (g).

18 U.S.C. § 3599(f). After discussing the nature and
purpose of clemency proceedings, the United States Court of
Appeals for the Fifth Circuit provided guidance on whether
district court's should grant funding for clemency
investigations.

Thus, when a petitioner requests funds for investigative
services for the purpose of clemency proceedings, the
petitioner must show that the requested services are
reasonably necessary to provide the Governor and Board of
Pardons and Paroles the information they need in order to
determine whether to exercise their discretion to extend
grace to the petitioner in order to prevent a miscarriage of
justice.

Brown, 762 F.3d at 460. In construing this language,
the United States Court of Appeals for the Sixth Circuit held
that a district court abused its discretion in denying
funding for a neuropsychological examination on the basis
that the inmate had already had mental health examinations
because the inmate “pointed to a history of events and
behavior that can cause brain damage; he has provided an
expert opinion that neuropsychological testing is warranted;
and has explained why ...

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